State v. Hume

Oregon Supreme Court

State v. Hume

6 P. 427, 12 Or. 133, 1885 Ore. LEXIS 15

DecidedMarch 25, 1885

StatusPublished

This text of 6 P. 427 (State v. Hume) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Hume, 6 P. 427, 12 Or. 133, 1885 Ore. LEXIS 15 (Or. 1885).

Pincite

Opinion

Waldo, C. J.

There is a difference between pleading a public and private way. In the former case it is not necessary to set out the termim; in the latter, both must be set out with certainty. (Taunton, J., in Simpson v Lewthwaite, 3 Barn. & Adol. 226.) In pleading a highway it is sufficient to set forth in a compendious way that it is a highway, without setting [134]*134forth when it became a highway. (Aspindall v. Brown, 3 Term Rep. 266.) But if the termini be stated, they must be proved, because they become descriptive of the identity of the highway described. (State v. Noble, 15 Me. 476; Hill v. State, 41 Tex. 253; Rex. v. Inhabitants of St. Weonards, 6 Car. & P. 582.) “ When, however, a local description sufficient to identify and fix the precise point of obstruction is given, as well as the termini, the latter may be disregarded, and proof that a road existed at the place of obstruction is alone necessary.” (Lewiston v. Proctor, 27 Ill. 419; Dimon v. People, 17 Ill. 421; Houston v. People, 63 Ill. 186.)

The indictment in this case contains such a local description in the allegation “that there is a strip of land lying in front of said town of Ellensburg, as appears from a plat of said town recorded in the office of the county clerk of said Curry County, and along the navigable waters of Rogue Hiver, which forms a part of said highway, and which said strip of land lying in front of said town, and along the navigable waters of Hogue Hiver as aforesaid, now is, and for more than twenty years prior to said 1st day of May, A. H. 1874, had been, a public highway and public landing, over which all persons had been accustomed to pass and repass at pleasure; that on the 1st day of May, 1884, in the county aforesaid, the said H. H. Hume did wrongfully obstruct the public highway aforesaid, where the same passed in front of the town of Ellensburg aforesaid, and along the navigable waters of said Rogue Hiver as aforesaid, by then and there erecting,” etc:

No exceptions were taken to any charge of the court on any issue on the material part of the indictment. The errors that intervened, if any they were, were wholly immaterial to the issue, The judgment must be affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

Waldo, C. J.

There is a difference between pleading a public and private way. In the former case it is not necessary to set out the termim; in the latter, both must be set out with certainty. (Taunton, J., in Simpson v Lewthwaite, 3 Barn. & Adol. 226.) In pleading a highway it is sufficient to set forth in a compendious way that it is a highway, without setting [134]*134forth when it became a highway. (Aspindall v. Brown, 3 Term Rep. 266.) But if the termini be stated, they must be proved, because they become descriptive of the identity of the highway described. (State v. Noble, 15 Me. 476; Hill v. State, 41 Tex. 253; Rex. v. Inhabitants of St. Weonards, 6 Car. & P. 582.) “ When, however, a local description sufficient to identify and fix the precise point of obstruction is given, as well as the termini, the latter may be disregarded, and proof that a road existed at the place of obstruction is alone necessary.” (Lewiston v. Proctor, 27 Ill. 419; Dimon v. People, 17 Ill. 421; Houston v. People, 63 Ill. 186.)

The indictment in this case contains such a local description in the allegation “that there is a strip of land lying in front of said town of Ellensburg, as appears from a plat of said town recorded in the office of the county clerk of said Curry County, and along the navigable waters of Rogue Hiver, which forms a part of said highway, and which said strip of land lying in front of said town, and along the navigable waters of Hogue Hiver as aforesaid, now is, and for more than twenty years prior to said 1st day of May, A. H. 1874, had been, a public highway and public landing, over which all persons had been accustomed to pass and repass at pleasure; that on the 1st day of May, 1884, in the county aforesaid, the said H. H. Hume did wrongfully obstruct the public highway aforesaid, where the same passed in front of the town of Ellensburg aforesaid, and along the navigable waters of said Rogue Hiver as aforesaid, by then and there erecting,” etc:

No exceptions were taken to any charge of the court on any issue on the material part of the indictment. The errors that intervened, if any they were, were wholly immaterial to the issue, The judgment must be affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

6 P. 427, 12 Or. 133, 1885 Ore. LEXIS 15, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hume-or-1885.

Opinion

Related

Cite This Page — Counsel Stack